December 9, 2010

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This year’s historic vote in Congress to scale back the harsh and racially disparate mandatory sentences for federal crack cocaine offenses was a watershed event in the long campaign for a more rational approach to drug policy. The Fair Sentencing Act is expected to benefit about 3,000 defendants a year, with an average sentence reduction of twenty-seven months. Defendants convicted of possessing as little as five grams of crack—the weight of two pennies—no longer receive a mandatory five years in prison, and the quantity-based sentencing disparity between crack and powder cocaine offenses has been significantly reduced. The true value of the new law will be seen, however, only if it helps to open the door to more widespread drug policy reform.

As welcome as the reforms are, they leave in place the broad structure of mandatory sentencing for most drug offenses, under which judges have no discretion to consider mitigating circumstances such as the defendant’s age, parenthood or history of abuse. Such policies have produced outcomes as bizarre as the fifty-five-year prison sentence imposed in 2004 on Weldon Angelos, a 24-year-old music producer in Utah with no prior felony convictions. On three separate occasions, Angelos sold about $350 worth of marijuana to a police informant. At each sale, Angelos possessed a gun, which he neither used nor threatened to use. Yet under the terms of federal mandatory penalties, Judge Paul Cassell, a George W. Bush appointee, was required to impose what was essentially a life sentence, which he called "unjust, cruel, and even irrational."

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In recent years states across the nation have been re-evaluating the excesses of their sentencing policies. In Michigan the extreme "650 Lifer Law," whereby even a first-time offender convicted of selling 650 grams of heroin or cocaine would receive a sentence of life without parole (the same as for first-degree murder), was finally scaled back in the late 1990s after being on the books for twenty years. Former Republican Governor William Milliken, who had signed the law into effect, called it "the worst mistake of my career." Similarly, the rollback of New York’s notorious Rockefeller Drug Law in 2009 marked a milestone after decades of campaigning.

The federal crack reform continues this incremental move toward more rational sentencing policies, but much work remains to be done. Drug courts, for example, have been shown to help divert low-level offenders into treatment rather than prison, but many of them impose strict criteria for admission, often focusing on cases in which prison terms would be unlikely to be imposed even without the program. School-zone drug laws, imposed with the inarguable goal of reducing drug sales to children, often apply as well to drug sales between consenting adults. This has a predictable racial impact, because large portions of densely populated urban areas, disproportionately comprising communities of color, lie within a school zone. In New Jersey, fully 96 percent of such penalties were imposed on African-Americans or Latinos, an outcome that in 2010 persuaded the legislature to restore discretion to judges in such cases.

The first test of the impact of the Fair Sentencing Act will come when the US Sentencing Commission votes on whether to apply the guideline changes retroactively to the thousands of people who committed their crack cocaine offense before the bill was signed. Along with that, the commission’s report on mandatory sentencing, due out next year, may help to strengthen the argument about excessive punishments.

Ultimately, the scope of reform can be measured only by our ability to level the playing field in addressing substance abuse. While the war on drugs has been waged for decades, it is actually two very distinct wars. In well-heeled communities substance abuse is treated as a public health problem best addressed by prevention and treatment. In low-income communities of color, it is far more likely to be considered a criminal justice problem, one best addressed with more police, prosecutors and prisons. We have a better model at hand; the challenge is to implement it more broadly and equitably.